EMORY ALEXANDER LEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
The appellant contends, and the state concedes, that his guidelines sentence for armed sexual battery and armed burglary is based upon an error in the scoring of a prior Geor gia burglary offense on his guidelines score-sheet. Specifically, the Georgia burglary was scored as a second-degree felony on the theory that the burglarized structure was a dwelling. However, as the record reveals and the state concedes, the Georgia statute does not recognize such a distinction and does not contain a separate element requiring that the burglarized structure be a dwelling. In Dautel v. State, 658 So. 2d 88 (Fla. 1995), the supreme court held that only the elements of the out-of-state crime, and not the underlying facts, should be considered in determining the degree of the analogous Florida offense on a guidelines seoresheet. Consequently, the Georgia offense must be scored as a third-degree felony.
Accordingly, we vacate appellant’s sentence and remand the case for resentencing, with instructions to score the Georgia offense as a third-degree felony.
MINER, ALLEN and MICKLE, JJ., concur.
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Scott v. State, 260 So. 3d 1147 (Fla. 1st DCA 2018)…376 (Fla. 4th DCA 2008); Montoure v. State, 880 So. 2d 793, 794 (Fla. 1st DCA 2004); Knarich v. State, 866 So. 2d 165, 168 (Fla. 2d DCA 2004); Snipes, 793 So. 2d at 1108; Holybrice v. State, 753 So. 2d 621, 623 (Fla. 4th DCA 2000); Lee v. State, 675 So. 2d 682, 683 (Fla. 1st DCA 1996). Appellant has not argued below or on appeal that the trial court erred in relying on underlying facts to score the Georgia burglary conviction or that the elements of the out-of-state crime were not analogous to the…
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Moises Sanchez, JR. v. State (Fla. 4th DCA 2022)…between burglary and burglary of a dwelling, nor did it provide varying degrees of burglary. See Ga. Code Ann. § 16-7-1(a) (2005), (2011). Accordingly, these fourteen convictions should have been scored as third- degree felonies. See Lee v. State, 675 So. 2d 682, 683 (Fla. 1st DCA 1996) (“[T]he Georgia burglary was scored as a second-degree felony on the theory that the burglarized structure was a dwelling. However, . . . the Georgia statute does not recognize such a distinction . . . . Consequently, the G…
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Moises Sanchez, JR. v. State (Fla. 4th DCA 2022)…between burglary and burglary of a dwelling, nor did it provide varying degrees of burglary. See Ga. Code Ann. § 16-7-1(a) (2005), (2011). Accordingly, these fourteen convictions should have been scored as third- degree felonies. See Lee v. State, 675 So. 2d 682, 683 (Fla. 1st DCA 1996) (“[T]he Georgia burglary was scored as a second-degree felony on the theory that the burglarized structure was a dwelling. However, . . . the Georgia statute does not recognize such a distinction . . . . Consequently, the G…
Authorities Cited
- Dautel v. State, 658 So. 2d 88 (Fla. 1995)